In fact, it is probably the most prevalent offence committed by Cook Islanders and visitors to our shores. It is probably like that because it is where police appear to focus a lot of manpower and time.
However, I think it is time to review the laws that govern this area.
Essentially, the Transport Act 1966, upgraded in part by the Transport Amendment Act of 2007 along with the Transport Amendment Act 2016 are the legislations that govern drunken driving.
When police stop a person at a checkpoint or randomly on the road and an officer suspects that the person has been drinking, that officer has the power to request that person to undergo a breathalyser test.
This will determine whether the person’s level of alcohol in his or her body has exceeded the legal limit.
However, the result of such tests is not evidence presented in court, but precedes another breathalyser test conducted at the nearest police station.
A printout from the second test showing that the driver is over the legal limit is what prosecution will use against the driver in court. The other way police can prosecute drivers is when a hospital blood test shows that the driver is over the legal limit.
This may sound simple, but it is not. The legislation sets out the steps and procedures police must follow in order to execute the breathalyser and blood test. It is with legislative provisions like these that defence lawyers such as I mount challenges and succeed in some instances to get acquittals.
However, my focus in this column is on the penalties incurred by offending drivers. They can be out of proportion, particularly for first-time offenders, whose offending was by chance rather than deliberate.
Everyone who pleads guilty or found guilty to have driven a vehicle on public a public road while under the influence of alcohol gets an automatic disqualification. But I believe this law is particularly harsh on first-time offenders.
Licence disqualification creates a whole series of problems. They include issues with getting to and from work and taking children to school and extra-curricular activities. They may also end small businesses when the disqualified person is the operator and driver for the business.
Some people earn their living as drivers and they lose their jobs.
There is no second thought about long service or inconvenience to the life of the offender. The law as exercised by the court disregards any special circumstances despite the economic and social hardship created when a person loses their licence. Drink and drive – and you suffer. However, there are exceptions. I will elaborate on these later.
This is all very well, the law being tough to discourage driving while under the influence of alcohol. However, is it now the case that we have enough data to modify our laws in this area? Have we now reached the time for parliament to take another look at the penalty of automatic disqualification for first-time offenders? Should we now introduce a points demerit system that will track the frequency of offending instead of this bland rule of disqualification for your first offence?
In my view, what we have in the Cook Islands is a net of steel aimed at capturing deliberate offenders but it also captures the naïve and the medically-challenged: some people have very low alcohol tolerance because of medical conditions and unless they have medical reports to counter the charge, they stand to lose a lot.
I am currently appealing the conviction of a young woman who had a drink one night, went home at 2 am and went to sleep until 8 am before she drove to pick up a family member. This woman’s family are from the outer islands and depend on this young woman to drive them to the hospital, church and to clients who purchase their arts and crafts. She is their lifeline for medical care, social and community duties and income, The court said she was guilty and she does not fit the exception that I now elaborate.
Part of my motivation in writing this column is that local Justices of the Peace who sit to hear excessive breath alcohol (EBA) cases are under constant pressure from defence lawyers and from those who appear before them not to disqualify them because those being charged, particularly first-time offenders, consider it a harsh and unjust penalty.
A fine is a more convenient penalty and for recidivist offenders, tougher penalties are there for recommendation by police, and they could end up in prison. However, I believe it is these first time offenders that need re-consideration.
The pressure on JPs has resulted in an exception. A local JP acquitted a young police officer after he was breathalysed to be over the legal limit, because he had a career to pursue. He was touted as a Good Samaritan for helping another driver in an accident on the road, the night he was breathalysed.
The court has also sometimes been lenient with people facing serious criminal offences such as assault and has taken the career prospects of young offenders into account. It has acquitted them if they were first-time offenders. To me, this reasoning has crossed over into the EBA area and it a good sign, but the court runs the risk of practising double standards.
The outer islands woman was deemed less deserving of keeping her licence in spite of the value she brings to her family in hardship circumstances, while the young officer, who by the way was the son of a politician and is now no longer with the Cook Islands Police Force, was acquitted.
I argue that it is now time for parliament to reconsider at the EBA laws instead of practising a sweeping, all-encompassing law that I believe has now been corrupted by the court itself. The court can no longer sustain “one rule for all” regarding the disqualification penalty.
- Wilkie Rasmussen